Although the full decision has not yet been put in the public domain, it was reported last week, both on the BBC (link here) and widely in the press, that a 173 page judgment, making another substantial award of damages for non-recent childhood abuse in Scotland, has recently been handed down by Sheriff Dickson sitting at the All-Scotland Personal Injury Court (ASPIC).
We will consider this judgment, in a case we are calling for the purposes of this blog and following the BBC, “AB v The Christian Brothers” (AB), in more detail should the full, though perhaps redacted, judgment become public. As a first instance judgment it could yet be appealed. Meantime and on the basis of information as reported widely this week on “AB”, it is certainly worth noting that this is the second judgment within only five months in which more than £1.3m has been awarded in this area. The earlier case was another first instance judgment, handed down on 13 October 2021 by Lord Brailsford at the Court of Session, in A v Glasgow City Council (“A”) (link to full decision here).
Readers may find the following table of some assistance in considering these two recent awards. This table is produced on the basis of the reporting to date in AB and the judgment in A. On the question of interest on past losses, which can add substantially to awards in this area, it is worth pointing out that the judgment in A expressly held back this question for later determination with the result of that determination not presently in the public domain whilst the currently available reporting on AB does include commentary on interest.
|Brief case details: Head of claim||Award in AB (February 2022) – physical and sexual abuse of a child “in-care”, AB, by three men between February 1980 and April 1981||Award in A (October 2021) – physical and sexual abuse of a child, A, by a male foster carer between 1982 and 1987|
|Solatium (general damages / PSLA award)||£95,000||£135,000 (£90,000 attributable to the period of abuse, £25,000 from then to award and £20,000 to the future)|
|Interest on solatium||£73,990||Unknown|
|Past wage loss||£1,008,937 including interest||£584,874 excluding interest|
|Future wage loss||£190,043||£370,561|
|Future cost of treatment, including cognitive behavioural therapy||£2,200||£8,750|
|TOTAL||£1,393,270 INCLUSIVE OF INTEREST ON PAST SOLATIUM AND PAST WAGE LOSS||£1,339,185 EXCLUSIVE OF INTEREST ON PAST SOLATIUM AND PAST WAGE LOSS|
Comparison could be made between the £1.3m+ awards summarised above and the maximum £100k available to applicants to the Scottish in-care abuse redress scheme, most recently analysed in our blog of 17 February 2022 here, noting also that an applicant is required to waive their right to litigate should they wish to accept a redress payment. Other factors which may be relevant to individual choice on whether to seek redress (for those abused in relevant care settings) or litigate may include:
- the potential, in certain carefully defined circumstances, for a litigated claim to be dismissed on the basis of, either, the “fair hearing” or “substantial prejudice” defences, as most recently analysed in our blog of 8 February 2022 here.
- the fact that survivors of abuse pre-dating 26 September 1964 do not have a legal right to litigate because of Scots law on prescription hence may only apply for redress, assuming that they meet the qualifying criteria.
Frank Hughes, Partner and Fiona McEwan, Associate